The words likely and probable both express the degree of probability of something occurring. They’re not vague words. Vagueness is a function of borderline cases—at what point does someone become tall? It follows that vague words such as promptly and material require that you assess circumstances from the perspective of a reasonable person. By contrast, likely and probable aren’t a function of reasonableness. Nevertheless, likely and probable exhibit … Read More
In this 2010 post on AdamsDrafting I considered use of aggressively as an unhelpful alternative to reasonable efforts. Well, in the same vein I now offer you … strive! Three examples: CNH Capital shall strive to respond to credit applications within two (2) weeks following receipt of all requested information and material. During the Employment Period, Executive … (iv) shall perform Executive’s … Read More
Today I saw a contract that referred to itself throughout as “this CRADA.” Besides the fact that “CRADA” (standing for “cooperative research and development agreement”) has to be one of the least appealing acronyms, why bother using anything other than “this agreement”? Assuming that the full reference is used in the title and once in the introductory clause, readers don’t have … Read More
Deciding what label to apply to a particular source of uncertainty in contract language can be challenging. A case in point: In this 2010 post and this 2007 post on AdamsDrafting I discuss disputes regarding whether a provision that refers to something in the singular also encompasses the plural. I discuss that phenomenon further in this March 2012 post and … Read More
Here’s a thrilling question for you: If you attach to a contract a number of documents, each with its own page numbering, do you also apply, either in Word or by means of a hand stamp, consecutive page numbers to the entire set of attachments? Is there any accepted practice? It seems more trouble than it’s worth. If the individual … Read More
As I noted in this 2008 post on AdamsDrafting, everything I do, I do first in Canada. That pattern continues to hold, in that on October 4 I’ll be giving in Toronto, for my longtime partners Osgoode Professional Development, my first public seminar on the structure of M&A contracts. And it’s called … “The Structure of M&A Contracts.” It’s keyed … Read More
I’ve previously written, most recently here, about how contracts under seal can unfortunately have implications regarding consideration and statutes of limitations. But I exhumed from a comment (the most recent one) to this 2009 post on AdamsDrafting another way that seals can be relevant. This one relates to corporate seals—you know, those oh-so-impressive embossed impressions made by embossers that come with … Read More
In this December 2011 post I questioned the utility, for purposes of contracts, of what I called document-design “bling.” And in this February 2012 post I suggested that you can go too far in breaking up contract text. But I’m aware that I have negligible credentials in document design. And I’m aware that when it comes to the look of … Read More
Consider California Corporations Code § 313 (emphasis added): Subject to the provisions of subdivision (a) of Section 208, any note, mortgage, evidence of indebtedness, contract, share certificate, initial transaction statement or written statement, conveyance, or other instrument in writing, and any assignment or endorsement thereof, executed or entered into between any corporation and any other person, when signed by the chairman of … Read More
A recent opinion by the Fifth Circuit Court of Appeals serves as yet another reminder that the job description of anyone drafting a contract includes guarding against overreaching by a court. The case in question is Flagship Credit Corp. v. Indian Harbor Ins. Co., 2012 WL 2299484 (5th Cir. June 15, 2012) (copy here). A finance company that was sued in a … Read More
